This article was originally published in February 2015.  The information has been reviewed and is up-to-date as of August 2021. 

The term “on call pay” is subject to various interpretations.  There is on-call pay where an employer pays an employee a flat rate or small hourly amount to be available to the employer, such as $100 per week or $2 per hour.  But wage and hour law may require all of the on-call time to be paid, at least at minimum wage, if the time is considered “controlled.”  As with many wage and hour areas, the issue as to whether the on-call time must be paid depends on the factual circumstances surrounding the situation.  This area is often complicated by an agency’s on-call policy/agreement.  In the event of a later claim, a clear on-call policy can be essential in determining whether the parties characterized the time spent waiting on-call as actual work.

Employers must generally pay employees for actual work performed for the employer, whether the work is performed on the employer’s premises or off-site.  The key factor is whether the employee is actually engaging in work.  For example, an on-call employee who is not required to remain on the employer’s premises, but merely required to notify the employer where he or she may be reached, is not working compensable hours under the Fair Labor Standards Act (FLSA) so long as the employee is not prevented from effectively using the time to engage in personal pursuits.

The Ninth Circuit has held that the two predominant factors in determining whether an employee’s on-call waiting time is compensable overtime are:

(1) the degree to which the employee is free to engage in personal activities; and

(2) the agreements between the parties.

Engaged to Wait or Waiting to Be Engaged?

The proper inquiry into the first factor is whether an employee is so restricted during on-call hours as to be “effectively engaged to wait.”  The Ninth Circuit has provided an illustrative, non-exhaustive list of factors to be analyzed in determining the degree to which an employee is free to engage in personal activities while on-call:

(1) whether there was an on-premises living requirement;

(2) whether there were excessive geographical restrictions on employee’s movements;

(3) whether the frequency of calls was unduly restrictive;

(4) whether a fixed time limit for response was unduly restrictive;

(5) whether the on-call employee could easily trade on-call responsibilities;

(6) whether use of a pager could ease restrictions; and

(7) whether the employee had actually engaged in personal activities during call-in time.

No one of the factors is dispositive.  Therefore, when considering whether on-call time is unduly restrictive, courts balance the factors permitting personal pursuits against the factors restricting personal pursuits to determine whether the employee is so restricted that he/she is effectively engaged to wait.

What Did You Say?

The second factor involves evaluating the agreements between the parties.  An agreement between the parties, which provides at least some type of compensation for on-call waiting time, may suggest the parties characterize waiting time as work.  Conversely, an agreement pursuant to which the employees are to be paid only for time spent actually working, and not merely waiting to work, may suggest the parties do not consider waiting time to be work.  Although it is important to note that the parties’ agreement is a predominant factor, but not a controlling factor.

An agreement will not, in and of itself, shield an employer from on-call liability. Even if there is a memorandum of understanding providing that certain categories of time will not be considered hours worked, if the degree to which the employees are free to engage in personal activities is sufficiently restricted, the time will be considered actual hours worked.  Nevertheless, an agreement that certain time does or does not constitute working time will be afforded deference by the court.

Ultimately, whether employees are entitled to be paid for every hour they are on-call requires a fact-intensive analysis and must be determined on a case-by-case basis.  Therefore, it is essential to understand the appropriate circumstances under which non-exempt employees can be designated as “on-call”, how to properly structure on-call assignments and how to effectively draft on-call policies/agreements in order to avoid triggering hourly compensation requirements.  Employers should also periodically evaluate the on-call assignments and how often employees are called out so they can make sure the organization is operating efficiently and employees are paid properly.

This article was reviewed in August 2021 and is up-to-date.

The stock market has reached all-time highs and the economy in general continues to be strong.  In this scenario, many public sector employers are hiring.  Although this is certainly welcome news, the hiring process does, however, carry legal risks.

The following are six areas of the hiring process in the public sector that deserve particular attention from a legal perspective.  This is not an exhaustive list of such areas, or a complete list of considerations, but it provides a general framework for what to trouble-shoot before hiring begins in earnest.

  1. Utilize Accurate Job Descriptions: At the very outset of the hiring process, it is critical to develop accurate and sufficiently detailed job descriptions.  These will prove important not only for hiring, but also for legal issues that may arise later during the course of the employment relationship.  An accurate job description will help the agency demonstrate that questions on job applications and during interviews are legitimate and non-discriminatory, and help those in the hiring process focus on eliciting those facts that are job-related.  Also, in the context of disability discrimination laws, in both the hiring process and during employment, an agency’s identification of the “essential functions of the job” will be critical.  Under both federal and state law, a court will treat the job description prepared by the employer prior to advertising or interviewing for the job as evidence of what constitute essential functions.

Detail in the job description can also be very important, because vague or overly general job descriptions may not provide proper guidance either to applicants deciding whether to seek the job, or to agency personnel making the hiring decisions.  Misunderstandings about the nature of the job can produce charges of discrimination or of failure to accommodate.  At a minimum, a job description should contain: (a) justifiable job-related educational requirements, (b) necessary vocational skills, (c) required work experience, (d) examples of duties, (e) unusual physical requirements, (f) work hours, and (g) compensation.  Where possible, job requirements should be validated by experts using professionally accepted validation methods.

  1. Establish a Uniform Screening Process for Applications: The next phase to consider is the initial “screening” of applications for those who are not qualified or not competitive in light of the quality and experience of other applicants.  As a general matter, an employer’s initial “screening” must be conducted in a neutral manner that does not result in an improper impact with regard to a protected characteristic, such as race, gender, religion, and age 40 and over.  Accordingly, the agency should establish a set of job-related screening criteria which do not result in exclusion of individuals who are qualified and competitive for the job.  The agency should also have a process in place to make a separate review of the fairness and appropriateness of screening criteria, to make sure the screening guidelines are followed uniformly, and to confirm that decisions were not influenced by unlawful considerations.
  2. Focus Interviews on Job-Related Questions, and Avoid Improper Questions: Like other aspects of the hiring process, interviews must be conducted in a non-discriminatory manner.  Questions should focus on qualifications for the job in question, and not pertain to protected characteristics.  Some unlawful questions are easy to spot, such as asking about an applicant’s race, age, religion, or other protected characteristics.  But according to the Department of Fair Employment and Housing (“DFEH”), the list also encompasses some questions that bear indirectly on these matters, such as questions about the date of completion of school, religious days the applicant observes, or the applicant’s birthplace.  There are, however, ways questions can be phrased to request information the employer legitimately needs without creating an impression of bias.  (For example, it would be appropriate to ask which languages an applicant speaks, but only if relevant to the job at issue.)

It is vital that agencies ensure that those employees conducting interviews have received training in what constitute protected classifications, and what questions are prohibited. Also, interviewers should be thoroughly familiar with the job description and the nature of the job in question.

  1. Background Investigations, Including Reference Checks: Background investigations pose unique legal challenges.  To fill some positions such as police officer, a public agency is actually required by law to conduct such an investigation.  However, applicants have state and federal constitutional privacy rights that bear on what information an agency can seek and in what manner the information may be sought.  Also, an agency must be careful to abide by the same anti-discrimination standards in conducting the background investigation that are required in all other aspects of the hiring process.  Further, there are federal and state statutes that may govern how the investigation is conducted.

An important step in the background investigation process is obtaining a signed waiver and authorization from each selected applicant.  The waiver/authorization should inform the applicant of the types of information the agency will request from the applicant’s current or former employers.  It should also require the applicant to release the agency and current or former employers from liability arising from the background investigation.  The document can also require the applicant to authorize access to, and/or to require the applicant to obtain a copy of, the applicant’s personnel file from prior employers.  It may be appropriate for the investigator actually to meet with the applicant to explain the process and make sure the applicant fully understands what types of information the agency will seek.

  1. Keep Pre-Offer and Post-Offer Separate: Generally, under both federal and state law, employers cannot ask questions about disabilities or require medical examinations prior to making a conditional offer of employment.  The EEOC has described that a “conditional offer of employment” is a real job offer that is made after the employer has evaluated all relevant and lawful non-medical information which could reasonably have been obtained and analyzed prior to making the offer.  The offer is conditioned upon acceptable medical information, such as passing a job-related medical examination that is directly related to job performance and business necessity.  Typically, for a conditional job offer to be “real,” an employer cannot conduct medical examinations or otherwise elicit medical information until after the employer has evaluated all relevant non-medical information, and offered employment subject only to the medical exam.

Agencies should audit their practices to ensure they comply with these requirements.  In the case of peace officers, agencies can sometimes make conditional offers before some types of non-medical evidence (i.e., background checks) has been received, if the evidence cannot reasonably have been collected earlier.  This, however, is an exception to the general rule.  In addition, the agency should be able to prove that the medical inquiries it makes post-offer, including psychological evaluations, which are often conducted for public safety positions, are in fact necessary for determining whether the applicant can perform the job.  (There are also considerations regarding drug tests and the limits applicable law places on them.)

  1. Rejection of Applicants Based on Results of Medical Examination:  If an agency rejects an applicant based on the results of a medical examination, it must be prepared to present evidence that the decision comports with state and federal laws prohibiting discrimination on the basis of disability.  Considerations include whether a reasonable accommodation was available that would not impose an undue hardship, the extent to which the applicant’s holding the position would pose a direct threat to health or safety of the applicant or others that could not be eliminated by reasonable accommodation, and others.  How an agency plans to respond to charges of disability discrimination can be addressed largely in advance, by thoroughly vetting the criteria and decision making process to be used.

* * * *

Although the areas of federal and state law involved can be complex, auditing and trouble-shooting the hiring process at the outset, and making sure that the best possible procedures are in place before they begin to operate, can help avoid legal problems later.

We are excited to announce a new video series designed especially to serve our public safety clients. Our short Public Safety Video Briefings will tackle cutting-edge issues and core principles relevant to public safety employers. We hope you find these videos useful and thought-provoking.

 

This article was reviewed in July 2021 and is up-to-date.

As the summer season winds down, so do public agency departments that hire seasonal workers to staff summer camps, pools, extended park and recreation hours, and a myriad of season-specific facilities and activities. But, just how do seasonal workers impact the agency’s health and retirement benefit obligations?

  1. The Affordable Care Act (ACA), Seasonal Worker Exception

The number of seasonal workers you hire may impact whether your agency is subject to certain ACA obligations. Under ACA, employers that have at least fifty (50) full-time employees, including “full-time equivalent” employees, on average during a particular year, qualify as “Applicable Large Employers” subject to the Act’s shared responsibly and employer information reporting provisions for offers of minimum essential coverage.* However, ACA provides a limited exception to the Applicable Large Employer calculation for employers with “seasonal workers.” (Note: Admittedly, there’s a lot of ACA jargon here. For a primer on ACA, we recommend reviewing our March 2014 post.)

Under the exception, an employer will not be considered an Applicable Large Employer if the following are both true:

  • the employer’s workforce exceeds 50 full-time employees (including full-time equivalents) for 120 days or fewer during a calendar year; and
  • the employees in excess of 50 during that period were “seasonal workers.”

This exception is narrow, and must be carefully applied.  For the purposes of ACA, a “seasonal worker” must be a worker who performs labor or services on a “seasonal basis,” such as a ski instructor or retail workers employed exclusively during holiday seasons. Seasonal based work means work that “ordinarily” pertains to or is of the kind exclusively performed during certain seasons or periods of the year, and which, “from its nature,” may not be continuous or carried on throughout the year.  Accordingly, if your agency’s camp, park, or swimming pool is only operated during summer months, or if it operates at a high demand or for extended hours, only during summer months, the employees associated with the limited seasonal operation may qualify as “seasonal workers” under ACA.  If the employment of those workers also lasts 120 days or less, they may be excluded from the agency’s Applicable Large Employer assessment.

As an aside: we caution that ACA also uses the term “seasonal employee,” which is used in the employer shared responsibility provision, in a different context than “seasonal worker.”

  1. California’s Healthy Workplaces, Healthy Families Act

Despite the ACA requirements discussed above, seasonal workers may be entitled to paid sick leave under California’s Healthy Workplaces, Healthy Families Act. Even a part-time, seasonal worker will be entitled to accrue paid sick leave if the employee works for at least 30 calendar days in a year.  However, the employee must be employed for at least 90 days before he/she is entitled to use accrued time.  When it comes to seasonal workers, be sure to check the 30/90 day requirements against your agency’s sick leave policy.  In some cases, the agency’s policy may be more generous.  In addition, employees returning to your agency for seasonal work within one year from their prior date of separation, are entitled to have previously accrued and unused sick days reinstated.

  1. The Public Employees’ Retirement Law (PERL), Seasonal Employment Exception

Careful consideration is required when determining whether “seasonal” workers are entitled to membership in the Public Employees’ Retirement System (PERS).  Under the PERL, certain part-time or limited term employees are excluded from membership in PERS.  Under any circumstance when the employer hires an employee who is already a member of PERS, the employee must be enrolled in membership with the employer, even if a seasonal worker. In addition, if full-time employment has a fixed term of more than six months, or more than one-year for a part-time employment (an average of at least 20 hours per week), the employee is entitled to membership.  If seasonal employment in fact exceeds six months of full-time service or one year of part-time service (at least an average of 20 hours per week), the employee must be enrolled in membership with CalPERS.  The most often cited membership thresholds for “seasonal” employees is 125 days of service (if paid on a “per diem” basis) or 1,000 hours of services (if paid on a basis other than “per diem”) in a fiscal year.   If  paid service equals or exceeds 125 days or 1,000 hours in a fiscal year, the employee will be entitled to membership. As summer comes to a close, and seasonal employees may still be “on the books,” PERS employers should review the actual number of hours and days the employee has worked in the current fiscal year, to determine whether the employee may now, or soon, be entitled to PERS membership.

For those of you ramping up on employees in the fall/winter season, begin planning ahead today.  Fix contract terms for seasonal workers, ensure they do not exceed work hour / day limits established by the PERL or ACA.  At the same time, ensure that your seasonal workers accrue paid sick leave, if they work for your agency for at least 30 days. And fear not; cooler days are ahead!

This article was reviewed in July 2021 and is up-to-date.

Often times, an employee may know that discipline or a poor performance evaluation is imminent. Occasionally, such an employee will engage in a preemptive strike—“You can’t discipline me or give me a poor performance evaluation now since I have submitted a complaint.” While this may not necessarily be the norm, it is also not unheard of, causing employers to go from being confident in their decision to being uncertain and worried about the possibility of costly litigation.

Many believe retaliation claims are the easiest for employees to allege and prove. Therefore, it is not surprising that retaliation claims accounted for 56 percent of the charges submitted to the Equal Employment Opportunity Commission (EEOC) in 2020. Similarly, the California Department of Fair Employment and Housing received a total of 15,898 retaliation complaints, with and without requests for an immediate right to sue, in 2020, which was the highest percentage of claims at 20 percent. An additional reason retaliation claims are much more prolific than other protected status claims is that retaliation can be asserted based upon any protected activity (e.g., whistleblower, using federal or State family leave, complaining on behalf of another person, safety, wage and hour complaints, etc.) It is not necessary to be a member of the protected class in question to assert a retaliation claim (an example would be a man complaining about alleged discrimination against women). The employee only needs some type of protected activity.

Retaliation claims are also often the most problematic for employers to defend. For example, even an employee’s “good faith belief” that he has engaged in protected activity could meet the requirements for a retaliation claim. In a 2016 case, Castro-Ramirez v. Dependable Highway Express, Inc., an employee complained about his hours being changed because it impacted his ability to take his son to dialysis. Although the employer’s refusal to accommodate the employee’s schedule may not necessarily have been unlawful, the employee had a good faith belief that the employer’s refusal was unlawful, and that was all he needed to establish that he engaged in “protected activity” for a retaliation claim. The court even went so far as to say that the employee did not have to use the words “accommodation” or “unlawful” to prove his good faith belief that the employer’s actions were unlawful.

If an employee is able to show that he engaged in protected activity, was subject to an adverse employment action (which in some circumstances can include a poor performance evaluation if it is likely impair the employee’s prospects for advancement or promotion), and there is a connection between the activity and the action, the employer then has the burden of proving that the adverse employment action was not the result of the employee’s protected activity. This is where it gets complicated. The employer must show legitimate, lawful reasons for the action taken, and on-going and consistent documentation is the employer’s most important ally in defending against retaliation claims. If the employer has a clear, written record of the reasons why an employee may be disciplined or receive a poor performance review prior to the employee making a complaint, the employer is in a much better position to defend the adverse action. Another important element is to ensure that the employer’s policies, rules, contracts or practices are applied consistently and evenly. The California Department of Fair Employment and Housing regulations require retaliation as a component in training provided to employees.

Should an employee make that preemptive strike and submit a complaint or grievance in advance of the employer taking an adverse action, the employer need not be intimidated but should consider all the relevant factors before making a decision—how good is the documentation to support the decision, when did the conduct giving rise to the discipline occur, and what factors could potentially support the employee’s retaliation claim. And when in doubt consult legal counsel.

On June 15, 2021, the State of California took a step towards returning to some normalcy when it officially reopened for business after over a year of restrictions and closures due to the COVID-19 pandemic. In doing so, the state announced it would be easing, for vaccinated individuals, some of the restrictions set in place regarding capacity limits, social distancing, and mask wearing.

One of the significant changes in the restrictions is that fully vaccinated individuals can resume everyday activities mask-free in nearly all settings, except in certain settings such as public transit; healthcare and long-term care facilities; indoors in K-12 schools, childcare and other youth settings; correctional facilities and detention centers; and homeless shelters, emergency shelters, and cooling centers.

On the other hand, unvaccinated individuals will still be required to use masks in all indoor public settings and businesses.  This includes indoor malls, movie theaters, and state and local government offices.

What Does the Revised Mask Mandate Mean for California Employers?

Effective June 17, 2021, the state’s new guidelines for mask wearing provide employers with the option of allowing fully vaccinated employees to stop wearing masks while on the job.  This does not mean that an employer can no longer require employees (including those who are vaccinated) to wear a mask while indoors at the workplace, and any employee can certainly continue wearing a mask if they choose.

California employers who choose to allow fully vaccinated employees to work indoors without masks will need to document which employees in their workplace received their vaccination. Employers can track an employee’s vaccination status in different ways.  For example, employers can request that employees provide proof of vaccination – either through a copy of their vaccination card or a health care document showing their vaccination status.  Alternatively, employees can self-attest to their vaccination status, and employers must maintain a record of each employee who self-attests.  Employers must take care to ensure that this documentation or any records regarding an employee’s vaccination status remain confidential.

Additionally, all employees – regardless of vaccination status – may still be required to wear masks indoors if their workplaces see a surge in COVID-19 cases.

Exemptions to Mask Requirements Remain in Place

California employers should also remember that the exemptions to the mask wearing requirements remain in place, and apply to unvaccinated workers.  The exemptions to the mask wearing requirements apply to individuals who: are under two years old; have a medical condition, mental health condition, or disability that prevents them from wearing a mask; are hearing impaired, or are communicating with a person who is hearing impaired, where the ability to see the mouth is essential for communication; and for whom wearing a mask would create a risk to the person related to their work, as determined by local, state, or federal regulators or workplace safety guidelines.

Employers can also consult legal counsel when questions arise on issues such as how to appropriately gather information regarding an employee’s vaccination status.

The problems facing public agencies, many of which are struggling just to keep their heads above water, may get much worse in the near future.  The California Legislature is currently debating Senate Bill (SB) 278 (Leyva), which if passed would create new and in some cases retroactive financial burdens and uncertainties for local public agencies already struggling to fund their pension obligations. Specifically, SB 278 would shift the responsibility for paying disallowed compensation reported to the California Public Employees’ Retirement System (CalPERS) directly to local public agencies.

For context, the Public Employees Retirement Law (PERL) provides a defined benefit retirement plan for public agency employees administered by CalPERS.  The Public Employees’ Pension Reform Act of 2013 (PEPRA) made changes to the categories of compensation that can be included in an employee’s retirement benefit calculation.  Compensation items used for retirement benefit calculations are often specified in collective bargaining agreements and are the product of negotiated agreement.  However, the statutes, regulations, and administrative guidance concerning which items are reportable are complex and can be confusing, which sometimes leads to reporting errors.

Under current law, if CalPERS determines that a disallowed item of compensation was included when determining a retiree’s retirement benefit allowance, the retiree has to pay CalPERS back the amount of overpayment, and future retirement allowance payments are reduced prospectively based on what the retiree would have received if the improper item of compensation had not been included.  CalPERS generally may collect amounts that were overpaid within the last three years.  In a nutshell, the individual must pay back and stop receiving that which they were never entitled to in the first place.

If passed, SB 278 would require local agencies to pay CalPERS the full cost of any overpayments made to the retiree based on the disallowed compensation and provide an annuity or lump sum payment to make the retiree whole for any reductions in future benefit payments.  The statute would apply to any determinations made on or after January 1, 2017, if the appeal rights of the retiree have not been exhausted.  Importantly, it appears a CalPERS determination made on or after January 1, 2017, could potentially apply to decades of misreported compensation before then, and in many cases would impact an entire bargaining group covered by a particular labor agreement.  This may very well incentivize CalPERS to start aggressively auditing local agencies, because any unfunded liabilities for inadvertently misreported compensation would be shifted directly to the employer.  The potential retroactive liability for public employers could be significant – and impossible to predict.  While SB 278 has a provision for CalPERS to review labor agreements prospectively and provide guidance, CalPERS would not be bound by its guidance.  The statute also fails to address past reported compensation that may result in significant retroactive liability.

For current employees, SB 278 does not make significant changes, as it allows improper contributions to act as a credit towards a public agency’s future contributions, and any contributions paid by the employee(s) on the disallowed compensation are returned.

Whether SB 278 becomes law is a decision that will likely fall on Governor Newsom’s shoulders.  A similar proposal – SB 1124 (Leyva) – was passed by the Legislature in 2018, but it was vetoed by Governor Brown.  In his veto message, Governor Brown said he was concerned the bill could be “abused to circumvent limitations in the law intended to protect the government—and ultimately taxpayers—from pension spiking.  Indeed, in the case of an error, this bill would effectively perpetuate that error for the rest of the member’s life, at substantial taxpayer expense.”  Governor Brown encouraged the Legislature to develop policies that would prevent such errors from occurring in the first place, including having CalPERS review proposals for pensionable compensation in memorandums of understanding before the memorandum is finalized.  If the error occurred after that process, penalties might then be warranted.  The current version of SB 278 fails to seriously address Governor Brown’s guidance.  Another similar bill, SB 266 (Leyva), was withdrawn and held at the desk after it passed the Legislature in 2020.

SB 278 suffers from the same problems as its predecessors.  It will lead to whole new category of litigation, does not address concerns with retroactivity and would require public agencies and taxpayers to shoulder the responsibility for reporting mistakes that may cause further crowding out of government services.

Regardless of whether SB 278 becomes law, public agencies should review each item of compensation reported to CalPERS to ensure that the item is reportable under applicable statutes, regulations, and administrative guidance.

 

 

We are excited to announce a new video series designed especially to serve our public safety clients. Our short Public Safety Video Briefings will tackle cutting-edge issues and core principles relevant to public safety employers. We hope you find these videos useful and thought-provoking.

 

This article was reviewed in June 2021 and is up-to-date.

Prevention of liability starts with auditing your agency’s personnel rules.  Indeed, in an employment-related lawsuit, the applicable personnel rule is often “Exhibit A.”  Each year, public agencies face changes to employment laws and regulations, best management practices, and internal changes to procedures.  Thus, the outcome of a lawsuit may just depend on whether the agency has audited and updated their personnel rules to reflect these changes.

A personnel rules audit is often a detailed, methodical and lengthy process.  As with most challenging projects, a personnel rules audit requires ample preparation and thoughtful strategy.  Here are some key questions to consider in preparation for a personnel rules audit.

When was the last time your agency conducted a personnel rules audit?

If your agency’s personnel rules hail from the typewriter age, it’s probably been too long since the last personnel rules audit.  Laws change, best management practices change, and internal procedures change.  Accordingly, your agency’s personnel rules will also need to change.  During this past year, many agencies quickly adopted remote work protocols and practices in an effort to efficiently adapt to the challenges surrounding the COVID-19 pandemic. As remote work practices continue into the future, it is important to have a corresponding formal remote work policy to ensure that key expectations and requirements are met.

Do your agency’s personnel rules cover the essentials?

Sure, policies on leaves and discipline are often easy to find in most agency personnel rules.  But there are many other essential policies that are often left out of personnel rules.  Some employees work two or more jobs in addition to their agency employment.  But do the agency’s personnel rules have an outside employment policy?  Employees are issued IPhones, laptops, email addresses, or vehicles.  But does the agency have an equipment use policy that regulates use?  And even more specifically, does the agency equipment policy even reference email?  Most public sector employees in California have due process rights to their employment.  But do the agency’s personnel rules provide clear definitions of categories of employees such as “for-cause employee” and “at-will employee?”  Finally, with disability discrimination claims on the rise, it’s no wonder that agencies are including a comprehensive interactive process policy in their personnel rules so that managers and human resources professionals have guidance on navigating the oftentimes choppy waters of the interactive process.

Do your agency’s personnel rules “make sense?”

Personnel rules should be well organized and easy to read.  Because personnel rules are often lengthy documents, a table of contents is a must.  Headings and subheadings are also essential so that the reader has a roadmap and policies may be more easily referenced.  Personnel rules typically cover numerous categories of policies.  The breakdown of these categories should be based on similarity in personnel topics.  For example, leave provisions should be grouped together.  So if the policy on overtime is tucked away and hidden somewhere in the grievance procedure, it’s definitely time to take a closer look at how your agency’s personnel rules are organized.

Do you know the “why” behind your personnel rules?

In order to effectively audit your agency’s personnel rules, it is essential to know the context behind the policies.  Do you know why a policy in the personnel rules requires what it requires?  Oftentimes, personnel rules are carried over into revised versions through the years.  But little is known as to why.  Is it because the law requires it?  Best management practice?  Neither?  For example, although state and federal law requires an employer to grant an employee leave for jury service, the law does not require that agencies pay overtime-eligible employees for time spent on jury service.  Nevertheless, agencies often pay overtime-eligible employees for time spent on jury service as an additional benefit pursuant to policy in order to treat exempt and overtime-eligible employees equally.

An audit of your agency’s personnel rules can seem like a daunting endeavor.  But regularly auditing your agency’s personnel rules is critical, and can mean the difference between liability and prevention of liability.